Ted Thomas: Extended privilege wrong both in principle and law

Rt Hon Ted Thomas

Of course, the judiciary has its share of imperfections. But over the centuries judges with no self-serving cause to foster have maintained a fine balance between freedom of speech and the right of individuals to secure their reputation.

In this context, the report of the Parliament's privileges committee recommending that Parliament enact legislation to reverse the effect of the decisions of the Court of Appeal and Privy Council in Jennings v Buchanan should be checked by the people.

If the legislation is enacted, MPs will be immune from defamation suits when they affirm or adopt in public what they have said in Parliament, notwithstanding that what they have said might be highly defamatory.

The committee's recommendation will shift the balance in favour of MPs. It is wrong in principle and will make bad law.

Article 9 of the 1688 Bill of Rights provides that proceedings in Parliament ought not to be questioned in any court or place out of Parliament.

Absolute privilege, therefore, applies to what is said in the House. The need for that absolute privilege, and the accompanying qualified privilege for the media to report what has been said, is not in doubt.

It is necessary to promote the democratic imperative of robust debate in Parliament and to enable MPs effectively to discharge their duties.

It should be appreciated, however, that in an open society in which citizens are jealous of their reputations, absolute privilege can be a fearsome immunity. MPs in the House might say things that are false or exaggerated, which are based on inadequate research or verification, and which are said for the worst of motives or for purely party political advantage, all without effective redress for those who have been wronged.

Some caution is required before this absolute immunity is effectively extended beyond the bounds of Parliament.

No issue arises when the MP repeats in full or in part the statement made in Parliament. The statement outside the House is actionable.

The difficulty arises when the MP affirms or adopts as true what was said in the House without actually repeating it.

Applying established case law, the Court of Appeal and Privy Council held that in such circumstances the MP's statement in Parliament has effectively been incorporated in what he or she said outside the House. To challenge an MP's public statement, then, is not to question the proceeding in Parliament.

As the Privy Council stated, the plaintiff's claim is directed at the extra-parliamentary republication, for which the parliamentary record will supply only the text. It is this interpretation of Article 9 that is unacceptable to the privileges committee.

The committee's proposal is advanced as if it were reclaiming for MPs an existing right that has been lost in the Jennings litigation.

This claim is misleading. The doctrine of effective repetition, as it is known, has been around since the mid-19th century. It has been applied in cases in Britain, Australia and New Zealand.

In condemning the effective repetition doctrine, the privileges committee insists that what is said in Parliament is necessarily being questioned in the courts. But, as a leading Australian judge has said: "It is true that proof that what the first defendant said outside Parliament was false will also prove that what he said in Parliament was false. But that is because he incorporated the latter in his statements outside Parliament."

This exchange quickly becomes a barren debate - a "yes, it does", "no, it doesn't", "yes, it does" type of argument - with those of a technical or academic disposition favouring one point of view and those with a preference for the substance of the matter the other.

The committee does not argue that absolute privilege extends to situations where the MP repeats in full or in part the sting in the alleged defamatory statement made in the House. It acknowledges that this has been the position for 200 years. But what in substance is the difference when the MP deliberately incorporates what has been said in the House into what he or she says outside the House?

Whether the statement in the House is repeated in extenso or by reference, the effect is just the same. The alleged defamation has been carried from Parliament into the public domain. This is not, as the committee would have it, a fiction.

Worse, what would be the reality? The MP would be permitted to affirm or adopt what has been said under privilege in the House. But the media, as they would be legally entitled to do, could then repeat exactly what the MP said in the House.

The conjunction of the alleged defamation and the MP's solemn endorsement of its truth will be glaringly conspicuous.

Common sense alone would suggest that the difference between repeating something in extenso and repeating it by reference or incorporation has to be more apparent than real. In our daily speech we regularly convey something by reference or incorporation.

What is important is the gist of what is said. A suitable test would be to ask what the listener or reader would reasonably understand had been conveyed by what the MP has said outside the House.

The committee gives weight to the claim that an MP's inability to affirm what he or she has said in the House will have a chilling effect on what MPs will be prepared to say in Parliament and on public debate generally. This claim appears greatly overstated when it is borne in mind that the MP will not be able to repeat the gist of the statement made in the House without losing the benefit of absolute immunity.

Bluntly put, what the privilege committee's recommendation, if accepted, would do is spare MPs being interviewed outside the House the personal embarrassment of having to decline to comment when they are not prepared to be held legally accountable for what they have said in Parliament.

The price to be paid for this concession can only be the erosion of the citizen's right to protect their reputation and privacy.

Under our constitution the courts are responsible for the interpretation of statutory instruments. Alert to the fact that absolute privilege attaches to the proceedings of Parliament as an institution, and not to individual MPs as such, the courts have consistently adopted an interpretation of our ancient Bill of Rights which holds that legal proceedings based on a statement made outside the House incorporating a statement made under the privilege of Parliament is not questioning proceedings in Parliament. In effect, the privileges committee would have Parliament nullify that interpretation and substitute its own.

New Zealanders must seriously ask whether the balance between freedom of speech and the rights of individuals to be secure in their reputation and privacy is better struck by an independent and impartial judiciary than by MPs in a matter in which they have a critical self-interest.

* The Rt Hon Ted Thomas, a retired judge of the Court of Appeal, is a distinguished visiting fellow at the Auckland University law school.